>Even if we decide it isn't insider trading, Capital One is on the hook for what it's employees do.
Under the legal theory of Respondeat Superior, Capital One would generally be liable for acts of its employees. However, liability will generally not extend to the employer when employees are acting outside the scope of their employment. Certainly if the employees were breaking the law it can be presumed they were acting outside the scope of employment, but even if it is found the employees were not breaking the law it would appear they were acting outside the scope of their employment. In short Capital One would have affirmative legal defenses.
Under the legal theory of Respondeat Superior, Capital One would generally be liable for acts of its employees. However, liability will generally not extend to the employer when employees are acting outside the scope of their employment. Certainly if the employees were breaking the law it can be presumed they were acting outside the scope of employment, but even if it is found the employees were not breaking the law it would appear they were acting outside the scope of their employment. In short Capital One would have affirmative legal defenses.